KULAMANI NAIK Vs. SATRUGHNA SWAIN

JUDGEMENT

(1.) Members of the second party in a proceeding under section 145 of the Code of Criminal Procedure, are the petitioners challenging the initiation of a proceeding under section 145(1) of the Code as well al restraining both parties from entering upon the disputed land.

(2.) The members of the first party filed an application before the learned Magistrate for initiating a proceeding under section 145 of the Code of Criminal Procedure and for attaching the land in question under section 146(1) of the Code and to appoint a receiver, on the allegation that though the members of the first party have been in cultivating possession of the land and have raised the paddy crops and are utilising the usufructs in the Sevapuja of the deities, yet the second party members are creating disturbance in the possession of the first party. On receiving the said application, the learned Magistrate directed the Officer in-charge, Kujang Police Station, to submit a report and on receipt of the said report, as the learned Magistrate was of the opinion that a dispute likely to cause breach or peace between the parties concerning possession of the land in question has arisen and there is apprehension of breach of peace, he initiated a proceeding under sub-section (I) of section 145 of the Code and by the same order, the learned Magistrate also restrained both parties from entering upon the suit land.

(3.) The learned counsel for the petitioners contends that on the assertion made in the application as the second Tparty members as wed as the first party members claim to be in possession as ccmarfatdars of the deity, the proceeding under section 145 is thoroughly misconceived and, therefore the pre-condition for initiation of a proceeding under section 145(1), Code of Criminal Procedure, being absent, the impugned order is nonest. In support of this contention, the learned counsel places reliance on the decision of this Court in the case of Bishnu Charan Naik v. Harihar Sahu and others1. It has been held in the said case that a proceeding under section 145, Code of Criminal Procedure, could not be initiated in a case where the property is joint family property and the parties are in joint possession. There is no assertion in the application filed by the first party members that the members of the first party as well as the members of the second party are in joint possession of the disputed land. On the other hand, the position asserted is that it is only the first party members who are in possession of the land in question and the second party members are trying to disturb the same. In the case of Kalakutu Chandan v. Markanda Gaudo & others2. R.N. Misra, J. (as he then was) while considering a similar matter came to hold that even though there may not have been any partition, if a dispute arises affecting the breach of the peace and any party is found to be in exclusive possession of joint family property, pending partition such exclusive possession even among co-sharers can be up held. The learned Judge declined to interfere with the initiation of a proceeding under section 145 of the Code of Criminal Procedure in the said case. In my view, the aforesaid decision in Kalakutu Chandans case, referred to supra, would apply in full force to the facts and circumstances of the present case and accordingly, it cannot be said at this stage that initiation of a proceeding under section 145, Code of Criminal Procedure, is bad in law. I would, therefore, reject the submission of the learned counsel for the petitioners that the initiation of the proceeding in the circumstances of the case is unwarranted.